Australian Federal Police (Discipline) Amendment Regulations 2000 (No 2) (Cth)
Australian Federal Police (Discipline) Amendment Regulations 2000 (No. 2)
Statutory Rules 2000 No. 139
I, WILLIAM PATRICK DEANE, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the
Australian Federal Police Act 1979 . Dated 21 June 2000
WILLIAM DEANE
Governor-General
By His Excellency’s Command
AMANDA VANSTONE
Minister for Justice and Customs
made under the
Page
• • •
These Regulations are the
Australian Federal Police (Discipline) Amendment Regulations 2000 (No. 2) .
These Regulations commence on the same day as the
Australian Federal Police Legislation Amendment Act 2000 (other than items 34, 47 and 48 of Schedule 2) commences.
Schedule 1 amends the Australian Federal Police (Discipline) Regulations.
Regulation 20 of the Australian Federal Police (Discipline) Regulations, as in force immediately before the commencement of these Regulations, continues to apply to a person suspended from duty under that regulation.
(regulation 3)
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1 Name of Regulations These Regulations are the
Australian Federal Police (Discipline) Regulations 1979 .
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2 Interpretation In these Regulations:
accredited laboratory means an accredited pathology laboratory within the meaning of theHealth Insurance Act 1973 .
Act means theAustralian Federal Police Act 1979 .
Complaints Act means theComplaints (Australian Federal Police) Act 1981 .
Disciplinary Tribunal means the Federal Police Disciplinary Tribunal established by section 54 of the Complaints Act.
medical practitioner has the same meaning as in theHealth Insurance Act 1973 .
nurse means a registered nurse.
Note The following expressions used in these Regulations are defined in subsection 4 (1) of the Act:
• AFP employee
• blood test
• body sample
• breath test
• commissioned police officer
• Commissioner
• Commissioner’s Orders
• duties
• member of the Australian Federal Police
• prohibited drug
• prohibited drug test
• senior executive AFP employee
• special member.
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Part 2 Conduct of AFP employees and special members
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3 Performance of duties An AFP employee or a special member must at all times:
(a) behave with courtesy to the public; and
(b) comply with the applicable provisions of any law.
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4 Regard to guidelines An AFP employee or a special member must have regard to any official guidelines that apply to the performance of his or her duties.
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6 False or misleading statements In the course of his or her employment or appointment, an AFP employee or a special member must not knowingly make a statement, whether written or oral, that is false or misleading.
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7 Property in the possession of AFP employee or special member An AFP employee or a special member must:
(a) as soon as practicable, report any loss of, or damage to, property issued to him or her or in his or her care; and
(b) properly account for, or make a prompt and true return of, any money or property received in the course of his or her employment or appointment.
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8 Use of firearms A member of the Australian Federal Police (other than the Commissioner or a Deputy Commissioner) or a special member who is issued with a firearm must not use the firearm except as authorised by Commissioner’s Orders.
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9 Improper conduct
(1) An AFP employee or a special member must not:
(a) use the fact that he or she is an employee or a special member, as the case may be, for the purpose of obtaining any personal advantage, or any advantage for another person; or
(b) without lawful authority or excuse, take, use or possess any property belonging to the Commonwealth for a purpose not connected with his or her employment or appointment; or
(c) wilfully or negligently waste, or cause any loss or damage to, any property belonging to the Commonwealth and made available to, or for the use of, the employee, special member or the Australian Federal Police; or
(d) place himself or herself under a pecuniary obligation to a person so that there are reasonable grounds for believing that the person may be able to influence the employee or special member in the manner in which he or she is to carry out his or her duties; or
(e) act in a manner that is prejudicial to the good order and discipline of the Australian Federal Police; or
(f) act in a manner that brings, or is likely to bring, discredit to the reputation of the Australian Federal Police.
(2) For this regulation, property in the possession, custody or control of the Commonwealth is taken to belong to the Commonwealth.
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10 AFP employee or special member not to drink, take drugs or be on licensed premises
(1) An AFP employee or a special member must not:
(a) by drinking alcohol or taking any drug, become unfit to perform his or her duties; or
(b) without the consent of the senior executive AFP employee under whose control, direction or supervision he or she performs duties, drink alcohol, or take any drug (other than for medical purposes) while on duty; or
(c) enter any restricted premises, without good cause, while on duty.
(2) A member of the Australian Federal Police (other than the Commissioner or a Deputy Commissioner), or a special member must not, without good cause, enter any restricted premises while in uniform or wearing a distinctive part of the uniform.
(3) If an employee or a special member thinks that another AFP employee or special member under his or her control, direction or supervision is, because of having drunk alcohol or taken any drug, incapable of performing his or her duties efficiently, the first‑mentioned employee or special member must immediately suspend that employee or special member from duty and report the matter to a senior executive AFP employee.
(4) For this regulation,
restricted premises means premises:
(a) for which a licence or permit has been granted under a law of a State or Territory that authorises the sale of alcohol for consumption on the premises; or
(b) where gaming or betting may lawfully be carried out under a law of a State or Territory; or
(c) for which a licence or permit has been granted under a law of a State or Territory regulating places of entertainment.
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13 AFP employee or special member not to solicit or receive gifts An AFP employee or a special member must not directly or indirectly solicit or accept a gift or gratuity from a person concerned directly or indirectly with any matter in which the Australian Federal Police, or the employee or special member, in the performance of his or her duties, is interested or concerned.
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(1) Except with the written permission of the Commissioner, an AFP employee or a special member must not:
(a) hold a paid office in connection with the conduct of any business; or
(b) engage in business, whether as a principal or agent; or
(c) engage or continue in the private practice of a profession, occupation or trade; or
(d) engage in any paid employment other than in connection with duties as an employee or a special member.
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15 Bankrupt AFP employee or special member An AFP employee or a special member who becomes a bankrupt must:
(a) as soon as practicable, tell the Commissioner that he or she is a bankrupt; and
(b) give the Commissioner information about his or her bankruptcy, as required by the Commissioner.
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Part 3 Drug testing
Division 3.1 General provisions
16 Meaning of authorised person For this Part:
authorised person means:
(a) in relation to a direction to undergo a breath test, blood test or prohibited drug test — a person authorised under regulation 17; and
(b) in relation to the conduct of a breath test, blood test or prohibited drug test, or to operate equipment for that purpose — a person authorised under regulation 18.
17 Persons authorised to give directions
(1) The Commissioner may, by instrument in writing, authorise a person for the purposes of subsection 40M (1) or 40N (1), (2) or (4) of the Act.
(2) The Commissioner may authorise:
(a) a person by name; or
(b) the holder, from time to time, of a particular position by reference to the title of that position.
(3) The Commissioner must issue an authorised person with a certificate stating that he or she is an authorised person.
(4) An authorised person must, if requested to do so, show his or her certificate to any AFP employee or special member who is directed by that person to undergo a test for sections 40M and 40N of the Act.
18 Persons authorised to conduct tests and to operate equipment for that purpose The persons specified in column 2 of Schedule 1 are authorised to conduct the test specified in column 1 of the Schedule and to operate equipment for that purpose.
19 Conduct of tests — general
(1) A breath test, blood test or prohibited drug test conducted for the purposes of sections 40M and 40N of the Act must be conducted in a respectful manner and must at least:
(a) be conducted in circumstances affording reasonable privacy to the AFP employee or special member; and
(b) not be conducted in the presence or view of a person whose presence is not necessary for the purposes of conducting the test; and
(c) not involve the removal of more clothing than is necessary for the conduct of the test; and
(d) not involve more visual inspection than is necessary for the conduct of the test.
(2) If practicable, the test is to be conducted by a person of the same sex as the employee or special member.
(3) If the conduct of a prohibited drug test requires the employee or special member to provide a sample of hair, the sample must not be provided by removing the root of the hair.
20 Certificates A certificate issued under this Part is evidence of the matters stated in the certificate.
21 Record keeping
(1) All records, including the body sample, relevant to a breath test, blood test or prohibited drug test conducted for this Part must be kept for 2 years in a secure location unless the Commissioner and the AFP employee or special member who provided the body sample both agree in writing to the records being destroyed on an earlier date.
(2) All records, not destroyed on an earlier date, must be destroyed after the period of 2 years.
(3) However, information obtained from the analysis of a sample may be retained after 2 years, if:
(a) it is used for compiling a statistical database; and
(b) it does not include information that may be used to identify the employee or special member who provided the sample.
22 Disclosure of information A person other than the AFP employee or special member who provided the body sample may only disclose information revealed by a breath test, blood test or prohibited drug test:
(a) if the information is already publicly known; or
(b) in accordance with this Part; or
(c) for the investigation of any offence or offences generally; or
(d) for a decision whether to institute proceedings for an offence; or
(e) for proceedings for an offence; or
(f) for the employee’s or special member’s medical treatment; or
(g) if the employee or special member consents in writing to the disclosure.
23 Disputed results
(1) If results are challenged, the unanalysed sample must be made available for independent testing and all records of the original test be made available for re‑examination.
(2) Because of possible degradation of the body sample over time, re‑testing need only detect the presence of alcohol or a prohibited drug.
Division 3.2 Breath tests
24 Procedures to be followed
(1) A breath test must be conducted using a Drager Alcotest 7110.
(2) An AFP employee or special member who is directed to undergo a breath test may ask the authorised person conducting the test to arrange for the employee or special member to also undergo a blood test.
(3) However, neither a request for a blood test to be conducted nor the conduct of a test absolves the employee or special member from the obligation to undergo a breath test.
(4) If the employee or special member asks that a blood test be conducted, the authorised person conducting the breath test must take all reasonable steps to contact a person authorised to conduct that test.
(5) A certificate expressed to be given for this regulation, signed by an authorised person and making statements about a matter specified in subregulation (6), is evidence of the matters stated in the certificate.
(6) The following matters are specified:
(a) the type and serial number of the instrument used to conduct the breath test;
(b) the sample number of the test;
(c) the full name and date of birth of the person tested;
(d) the full name of the authorised person conducting the test;
(e) whether the authorised person conducted a self‑test on the instrument before and after the analysis;
(f) if the authorised person conducted a self-test, the time and result of the self-test;
(g) whether the test was conducted on ‘override mode’;
(h) the date on which, and the time at which, the test was conducted;
(i) the result of the test as shown by the instrument.
Division 3.3 Urine samples provided for the purposes of a prohibited drug test
25 Procedures to be followed The provision, and the analysis, of a urine sample for the purposes of a prohibited drug test must be in accordance with the
Australian Standard AS 4308—1995 ‘Recommended practice for the collection, detection and quantification of drugs of abuse in urine’, as at 2 July 2000.
Division 3.4 Blood tests and prohibited drug tests
26 Provision of body samples (other than urine samples) for a blood test or prohibited drug test
(1) An authorised person taking a body sample (other than a urine sample) for the purposes of a blood test or prohibited drug test must:
(a) place approximately equal quantities of the sample into 2 containers; and
(b) label each container for future identification; and
(c) ensure that each container is sealed.
(2) The authorised person who has taken the sample must:
(a) if satisfied that the AFP employee or special member from whom the sample has been taken is incapable of understanding the procedures that have been applied to him or her — put both sealed containers in a one-way box; or
(b) in any other case — give 1 sealed container to the employee or special member and put the other sealed container in a one-way box.
(3) The authorised person must arrange for the container or containers to be submitted to an accredited laboratory for analysis to determine:
(a) the concentration of alcohol in the blood; or
(b) whether the body sample contains alcohol or a prohibited drug, as the case requires.
27 Analysis of body samples (other than urine samples) for a blood test or prohibited drug test
(1) An analyst at an accredited laboratory must conduct an analysis of a portion of the body sample (other than a urine sample) to determine:
(a) the concentration of alcohol in the blood; or
(b) whether the body sample contains alcohol or a prohibited drug, as the case requires.
(2) If the first analysis of a portion of the sample indicates the presence of alcohol or a prohibited drug in the sample, an analysis of another portion of the sample must be conducted.
28 Certificates
(1) As soon as practicable after an analysis has been conducted, the analyst who conducted the analysis of the body sample (other than a urine sample) for a blood test or prohibited drug test must give a certificate to:
(a) the AFP employee or special member who provided the sample; and
(b) the authorised person who directed that the employee or special member undergo the test.
(2) The certificate must state at least the following information:
(a) the name of the employee or special member;
(b) the date when the sample was provided;
(c) the date when the sample was received in the accredited laboratory for analysis;
(d) the accredited laboratory identification number of the sample;
(e) the date when the analysis was conducted;
(f) the results of the analysis;
(g) the signature and name of the analyst who conducted the analysis;
(h) any observations made during the course of the analysis which may have affected the test result.
(3) If both sealed containers were given to the analyst, the certificate must also inform the employee or special member that he or she may collect the unanalysed sample from the analyst, within 6 months after the sample was taken, and have that sample independently tested.
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Part 4 Disciplinary offences
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29 Disciplinary offences An AFP employee or a special member commits a disciplinary offence if he or she:
(a) engages in improper conduct as set out in regulation 9; or
(b) fails to comply with any other provision of Part 2; or
(c) fails to comply with a Commissioner’s Order; or
(d) fails to comply with section 40 of the Act; or
(e) fails to comply with subsection 40L (3) of the Act; or
(f) fails to comply with subsection 40M (3) or 40N (5) of the Act; or
(g) is charged before a court with an offence against the law of the Commonwealth, a State, a Territory or another country and the charge is proved to the satisfaction of the court, whether or not the court proceeds to convict the employee or special member.
Note 1 Section 40 of the Act deals with specific directions, instructions and orders.
Note 2 Subsection 40L (3) of the Act specifies the time limit for giving the Commissioner a financial statement.
Note 3 Subsections 40M (3) and 40N (5) of the Act specify that an AFP employee or special member must comply with a direction to undergo a drug test.
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30 Declaration — relevant disciplinary offence
(1) An offence is declared to be a
relevant disciplinary offence , for the definition of that expression in section 41 of the Act, if:
(a) it is a disciplinary offence under regulation 29; and
(b) in the course of committing the offence, an AFP employee or a special member uses the fact that he or she is an AFP employee or special member for the purpose of gaining an advantage for himself or herself, or for another person.
(2) However, an offence is not a relevant disciplinary offence if it:
(a) is an offence of engaging in improper conduct within the meaning of paragraph 9 (1) (b), (c), (e) or (f); or
(b) involves failing to comply with paragraph 3 (a) or regulation 8, 10, 14 or 15.
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Part 5 Commissioner’s powers
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31 Proceedings for disciplinary offences
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(1) If the Commissioner believes that an AFP employee or a special member has committed a disciplinary offence, the Commissioner may institute proceedings against the employee or special member by giving the employee or special member notice of the proceedings.
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Complaints (Australian Federal Police) Act 1981 ,
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32 Cautions
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(g) must set out the provisions of section 66A of the Complaints Act.
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34 Cautions under the Complaints Act
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(g) must set out the provisions of section 66A of the Complaints Act.
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36 Penalties
(1) If the Commissioner has determined that an AFP employee or a special member is guilty of a disciplinary offence, the Commissioner may:
(a) caution the employee or special member; or
(b) reprimand the employee or special member; or
(c) impose on the employee or special member a fine not exceeding an amount equal to 5 day’s salary at the rate payable to the employee or special member at the time when the fine is imposed; or
(d) terminate the employee’s or special member’s employment or appointment, as the case may be.
(2) However, the Commissioner must not impose a fine on an employee or special member for the offence specified in paragraph 29 (g).
(3) Before the Commissioner makes a decision to terminate the employment or appointment of an employee or special member, the Commissioner must:
(a) give to the employee or special member notice that:
(i) the Commissioner considers that it may be appropriate to terminate his or her employment or appointment, as the case may be; and
(ii) the employee or special member may, within 7 days after receiving the notice, give to the Commissioner a written statement to be taken into consideration; and
(b) take into consideration the matters contained in any statement given to the Commissioner under subparagraph (a) (ii).
(4) A penalty imposed on an employee or a special member has effect:
(a) in the case of the termination of employment of a commissioned police officer who is an AFP employee — on confirmation by the Governor-General; and
(b) in the case of the termination of the appointment of a commissioned police officer who is a special member — on confirmation by the Governor-General; and
(c) in any other case — on a date fixed by the Commissioner.
(5) If an appeal lies to the Disciplinary Tribunal, the date fixed by the Commissioner must not be earlier than 28 days after the employee or special member has been notified of the imposition of the penalty.
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37 Payment of fines The amount of a fine may be deducted from the salary payable to a person, in a lump sum or by such instalments as the Commissioner determines, if:
(a) the fine has been imposed on the person under paragraph 36 (1) (c); and
(b) the fine has not been paid within 14 days after the day on which the penalty had effect.
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Part 6 Termination of employment for criminal conviction
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39 Termination of employment or appointment in certain cases
(1) The employment or appointment, as the case may be, of an AFP employee or special member who is convicted of a relevant offence must be terminated for a disciplinary offence, if the sentence imposed for the relevant offence:
(a) is one of imprisonment for a period that is longer than 24 hours; and
(b) is imposed for a reason other than because the employee or special member failed to pay a monetary penalty; and
(c) is not a suspended sentence.
(2) The employment or appointment of an employee or a special member, who is convicted of a relevant offence for which a suspended sentence of imprisonment is imposed, must be terminated for a disciplinary offence, if the sentence is brought into operation otherwise than in default of payment of a monetary penalty.
(3) The employment or appointment of an employee or a special member must not be terminated under this regulation:
(a) until the expiry of the time for lodging a notice of appeal (including an appeal made in accordance with leave to appeal) or a notice of application for leave to appeal, against:
(i) the relevant conviction; or
(ii) the relevant sentence; or
(iii) if subregulation (2) applies — the activation of the relevant suspended sentence; or
(b) if a notice referred to in paragraph (a) has been lodged, before the appeal or application in the notice has been disposed of, discontinued or withdrawn.
(4) After the employment or appointment of an employee or special member is terminated, the Commissioner must promptly give to the employee or special member a notice of termination of employment or appointment.
(5) A notice for subregulation (4) must state the grounds for, and the date of, the termination of employment or appointment.
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40 Service of notice under subregulation 39 (5)
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41 Reinstatement of employment or appointment in certain cases
(1) Subject to subregulation (2), a person whose employment or appointment has been terminated under regulation 39 may apply in writing to the Commissioner to have his or her employment or appointment reinstated if:
(a) the relevant conviction has been nullified; or
(b) the sentence imposed for the relevant conviction has been reduced, varied or replaced, and the new sentence is not one that satisfies the criteria stated in subregulation 39 (1) or (2).
(2) A person may not apply to have his or her employment or appointment reinstated if, after having his or her employment or appointment terminated, he or she has incurred a further conviction of a kind stated in subregulation (3).
(3) A further conviction mentioned in subregulation (2) is a conviction that would cause the employment of the AFP employee who incurred it to be terminated under regulation 39 if the conviction had been incurred when the person was an employee or a special member, unless:
(a) the conviction has been nullified; or
(b) the sentence imposed for the conviction has been reduced, varied or replaced in the same way as a sentence to which paragraph (1) (b) applies.
(4) The Commissioner must reinstate the employment or appointment of a person who applies to have his or her employment or appointment reinstated if, since his or her employment or appointment was terminated, the person has not incurred a further conviction, in Australia or overseas, for a criminal offence.
(5) If a person applies to have his or her employment or appointment reinstated, and subregulation (4) does not apply, the Commissioner may reinstate the person’s employment or appointment.
(6) If a person applies to have his or her employment or appointment reinstated, the Commissioner must, no later than 14 days after receiving the application:
(a) decide the application; and
(b) tell the person the decision.
(7) A person whose employment or appointment is reinstated under subregulation (4) is entitled to have restored any entitlements that the person lost through having his or her employment or appointment terminated.
(8) A person whose employment or appointment is reinstated under subregulation (5) may:
(a) have his or her employment or appointment reinstated on any terms and conditions that the Commissioner considers appropriate; and
(b) be granted any entitlements the person lost through having his or her employment or appointment terminated.
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42 Other disciplinary provisions not excluded when employment or appointment is reinstated If a person’s employment or appointment is terminated and reinstated under this Part, those circumstances do not relieve the person of any liability under Part 5 to which the person would otherwise have been subject.
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Part 7 Miscellaneous
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43 Delegation The Commissioner may, in writing, delegate any of his or her powers under these Regulations to a Deputy Commissioner or an AFP employee.
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Schedule 1 Persons authorised to conduct tests and to operate equipment for that purpose (regulation 18)
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1. These Regulations amend Statutory Rules 1979 No. 211, as amended by 1980 No. 141; 1982 Nos. 90 and 281; 1984 No. 205; 1985 No. 292; 1988 Nos. 82 and 364; 1989 Nos. 332, 333 and 363; 1990 Nos. 45 and 408; 1992 Nos. 31 and 284; 1993 No. 306; 1995 No. 191; 2000 No. 36.
2. Made by the Governor-General on 21 June 2000, and notified in the
Commonwealth of Australia Gazette on 28 June 2000.
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